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Employment and the law

Employment is a contract between two parties, one being the employer and the other being the employee. In a commercial setting, the employer conceives of a productive activity, generally with the intention of creating profits, and the employee contributes labour to the enterprise, usually in return for payment of wages.

Employment also exists in the public, nonprofit and household sectors.

In the United States, the "standard" employment contract is considered to be at-will meaning that the employer and employee are both free to terminate the employment at any time and for any cause, or for no cause at all.

To the extent that employment or the economic equivalent is not universal, unemployment exists.

Employment Law is the branch of the legal profession that deals with employment related issues.

Employment Law exists in many countries, including the USA and the United Kingdom.

Employment law in the U.S. is largely governed by the common law rule of "at will employment", that is, that an employment relationship can be terminated by either party at any time for any reason, including a good reason, a bad reason or no reason at all.

Exceptions to this rule can be found in various federal employment law statutes, including Title VII of the Civil Rights Act of 1964 (and amendments), Title I of the Americans with Disabilities Act of 1990, the Family and Medical Leave Act 0f 1993, and numerous state laws with additional protections. The Fair Labor Standards Act regulates minimum wages and overtime pay for certain employees who work more than 40 hours in a work week.

There is no special employment tribunal in the U.S. Employment law cases are heard in state or federal courts, depending upon the issue, the size of the employer (the Civil Rights Act of 1964, for example, applies only to employers with 15 or more employees), and the litigation strategy of the plaintiff.

Employment wages.

The legal definition of a wage is the amount of money paid for some specified quantity of labor. When expressed with respect to time (usually per hour), it is typically called the legal wage rate, and is specified in pre-tax amounts. It is often the main monetary item upon which the worker and the employer focus when negotiating an employment contract.

Early forms of wages included salt (from which the word salary is derived). In modern English, the word salary tends to be used when referring to employment in which the employee is not paid by the hour.

Depending on the structure and traditions of different economies around the world, wage rates are either primarily market-driven (the USA) or influenced by other factors such as tradition, social structure and seniority, as in Japan.

In the United States, as of 2004, the prevailing wage rate for manual labor might range from $10 up to $70 per-hour, depending on the type of work and its location.

Several countries have enacted a statutory minimum wage rate in an attempt to prevent the supposed exploitation of low-paid workers.

Minimum wage in the United States

The first attempt at establishing a legal minimum wage in the United States came in 1933, when a $.25-per-hour standard was set as part of the National Recovery Act. However, in 1935 the United States Supreme Court declared the National Recovery Act unconstitutional, and the minimum wage was abolished.

The legal minimum wage was re-established in the United States in 1938 (pursuant to the Fair Labor Standards Act), once again at $.25 per hour ($3.22 in 2005 dollars.) It had its highest purchasing value ever in 1968, when it was $1.60/hour ($8.85 in 2005 dollars.)

During his presidency, Bill Clinton gave states the power to set their minimum wages above the federal level. As of 2004, 12 states had done so; and on November 2 of that year two additional states (Florida and Nevada) approved increases in statewide referendums. Some smaller government entities, such as counties and cities, observe legal minimum wages that are higher than the state as a whole; in some cases, the ordinance applies only to businesses that are under contract to the local government itself, while in others — most notably San Francisco — the higher rate is enforced across the board. San Francisco's $8.50-per-hour minimum wage is the highest in the nation.

Many progressive politicians in the United States advocate linking the minimum wage to the Consumer Price Index, thereby producing small annual increases rather than the larger hikes that tend to be adopted when legislation to do so is passed. The vast majority of conservatives oppose this, but a few actually favor it, on the grounds that this would stop their opponents from, in their view, periodically exploiting the issue.

Some cite the behavior of the U.S. Congress in defeating increases in the federal minimum wage, currently $10,300 per year ($5.15 per hour for a 40 hour work week based on 50 work weeks annually) for the last nine years (from 1996 to 2005) at the same time as repeatedly acting to increase their own annual salary by $28,500 to $162,000 over the last few years as an example of hypocrisy.

This is a list of the legal minimum wages in each state of the USA and the District of Columbia for jobs covered by federal minimum wage laws [1]. Other jobs, often ones which earn tips or in small companies, are often subject to lower minimums.

In addition, some counties and/or cities within states may observe a higher minimum wage than the rest of the state in which they are located; sometimes this higher wage will apply only to businesses that are under contract to the local government itself, while in other cases the higher minimum will be enforced across the board.

Legal minimum wage

* Federal $5.15 (29 USC Sec. 206)

* Alabama No state minimum wage law.

* Alaska $7.15

* Arizona No state minimum wage law.

* Arkansas $5.15

* California $6.75 ($8.50 in San Francisco)

* Colorado $5.15

* Connecticut $7.10

* Delaware $6.15

* District of Columbia $6.60 (Rising to $7.00 on January 1, 2006)

* Florida $6.15 (as of mid-2005; thereafter rises with inflation)

* Georgia $5.15

* Hawaii $6.25

* Idaho $5.15

* Illinois $6.50

* Indiana $5.15

* Iowa $5.15

* Kansas $2.65

* Kentucky $5.15

* Louisiana No state minimum wage law.

* Maine $6.35

* Maryland $5.15

* Massachusetts $6.75

* Michigan $5.15

* Minnesota $5.15 (increasing to $6.15 on August 1, 2005)

* Mississippi $5.15

* Missouri $5.15

* Montana $5.15

* Nebraska $5.15

* Nevada $5.15 (2004 referendum approved to create $6.15 minimum wage; requires reapproval in 2006 to become law)

* New Hampshire $5.15

* New Jersey $5.15 (Increases to $6.15 in October 2005, and $7.15 in October 2006)

* New Mexico $5.15

* New York $6.00 (Rising to $6.75 on January 1, 2006, and to $7.15 on January 1, 2007)

* North Carolina $5.15

* North Dakota $5.15

* Ohio $4.25

* Oklahoma $5.15 ($2.00 for work not covered by federal minimum wage) (OK Statutes 40-197.5)

* Oregon $7.25 (with future increases based on the inflation rate)

* Pennsylvania $5.15

* Rhode Island $6.75

* South Carolina $5.15

* South Dakota $5.15

* Tennessee $5.15

* Texas $5.15

* Utah $5.15

* Vermont $7.00

* Virginia $5.15

* Washington $7.35 (with future increases linked to inflation, as per Revised Code of Washington Sec. 49.46.020) [2]

* West Virginia $5.15

* Wisconsin $5.70 (As of June, 2005)

* Wyoming $5.15

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Employee Free Choice Act- to at Will or not to at Will That is the Question!

As a mediator of general civil and employment issues I have witnessed how the present predominant "At Will" doctrine has and is failing both employer and employee. This form of employment relationship is applying 19th century doctrine to the 21st century. There have been a few changes in the workplace since then.

I'm an employee who decided years ago that learning basic employee rights not only made sense but was mandatory particularly in an At Will environment. At-will simply put means an employee can be fired at any time, for any reason or no reason. The employee can also fire the employer for any or no reason. If the employer fires you, your employment with that organization is over. The burden of proving your termination not being justified is on you! If you are employed At Will, your employer does not need good cause to fire you. However, if you are terminated directly for any reason that violates laws protecting employees against discrimination or retaliation for reporting abuses, At Will doesn't apply.

I have experienced and have seen how insidiously employers use At Will termination tactics. For example, Amy Employee is fired for alleged insubordination when in truth she was 55 years old and the company wanted a younger person in that position. Amy then files a complaint for age discrimination with the Human Rights Commission. The employer refutes her claim and because Amy like most employees did not educate herself about basic employee rights, now faces an uphill battle. Employers have legal teams that know the game very well. The district court gives a "summary judgment" in favor of the employer and now if Amy has legal representation will have to incur further cost to keep her complaint alive.

The company Amy worked for knows what her salary or compensation was and the likelihood that short of seeking a loan to pay legal fees, her complaint like most don’t survive past this level. This is due to the economic burden and the lack of preparation in proving the charge. Amy’s legitimate complaint dies a horrible death and she struggles to move on disillusioned and bitter. The supervisor with the help of upper management/ownership or human resources is emboldened by the "victory" to continue to use these tactics as a part of normal day-to-day business practice. Hey, after all it’s "At Will" employment right? Then along comes Elaine who has taken the time to learn basic employee rights and is terminated for alleged insubordination, when in reality she refused the sexual advances of the supervisor.

Elaine files suit for sexual harassment and wins a huge monetary award against the company. I believe the Employee Free Choice Act would significantly remove the employers’ ability and will to discriminate and retaliate against the workforce. It would also save the employer financial cost and embarrassment. Every state in America with the exception of Montana is "At Will". For me the employment coin has had three sides, I have functioned as an employee, manager and business owner. I currently function as an employee and have a passion for educating job seekers and workers about basic employee rights! The Employee Free Choice Act by design creates a true partnership between employer and employee. In my view, "At Will" doctrine has spawned and reinforces an employment environment that is;

(1)adversarial by creating an "us versus them" employment mindset

(2)emboldens employers to maintain, sustain and perpetuate discriminatory employment

practices

(3)monumentally wasteful of monetary resources and public goodwill in needless

litigation

According to the language of the Free Choice Act, it will:

(1)give employees greater liberty to form unions and establish employment contracts

(2)punish anti union employer retaliation and harassment

(3)compel employers to deal timely and honestly in negotiating contracts

Money is the number one reason for an employee contract! These contracts may allow for termination of employment by the employer and employee. A Contract of employment is an agreement between an employee and employer that is mutually binding. These contracts specifically outline the duties and functions of the job. Many employment experts point out that a detailed contract of employment can be very good for both sides. A good contract makes the conditions of the job predictable.

Would you buy a business without knowing the exact details? Would you buy land without having ever seen it? When you apply for a loan, you have to read and sign a contract. Most people do not think about taking employment without first getting an employment agreement contract. A job is very important when it comes to keeping a roof over our heads, keeping the lights on, sending the kids to college, etc. Unfortunately, most people are not aware of the need to have a written contract with the businesses that hire them.

The perception is that employers do not want a contract to limit there ability to fire an employee. Why? I believe that elements of corporate America want to maintain an antiquated and out dated system of employment to preserve the ability to discriminate against certain groups and races. Here is the evidence to support that assertion. In fiscal year 2007, 37.0% of all (EEOC) Equal Employment Opportunity Commission complaints filed were race discrimination based. 30.1% were sex discrimination based and national origin is 11.4%. The American workplace is comprised of the good, bad and the ugly as any other society in the world.

In an At Will environment employers routinely utilize different ways to stop workers from trying to form unions for the purpose of negotiating an equitable piece of the overall economic "pie". According to the American Rights at Work organization, "25% of employers fire at least one pro-union worker; 51% threaten to close a worksite if the union prevails; and 91% force employees to attend one-on-one anti-union meetings with their supervisors."

Hmmm, let's see you've just received a negative employee performance review from your supervisor whether justified or not. Now you are obligated under pain of potential termination to meet with that supervisor about you joining a union. According to the AFL-CIO, "Every day, corporations deny workers the freedom to decide for themselves whether to form unions to bargain for a better life. They routinely intimidate, harass, coerce and even fire workers who try to form unions and bargain for economic well-being.

America’s working people are struggling to make ends meet these days and our middle class is disappearing. The best opportunity working people have to get ahead economically is by uniting to bargain with their employers for better wages and benefits. Recent research has shown that some 60 million U.S. workers would join a union if they could."

In my opinion, the Employee Free Choice Act will change the employment landscape for the better by obligating employers to recognize unions after a majority of workers sign cards authorizing union representation. This will also make mediation and arbitration mandatory for first-contract disputes. Under the present system even after a majority of workers vote for unionization, companies routinely drag out the process of recognizing the union for long periods of time. This delaying tactic "waits out" union organizers by employees losing interest, more turnover and increased intimidation. This Act will provide stronger penalties for violation of the rights of workers seeking to form unions or negotiate first contracts.

The Employee Free Choice Act will provide for employee majority sign-up instead of the present majority vote system, which is subject to management coercion and harassment. Employers typically use intimidation and threats adversely affecting the workers employment experience by:

manipulation of compensation

changing working conditions

changing work hours

demotion

negative job reviews

termination

These tactics are also synonymous with violations of federal discrimination and retaliation laws. I believe the Employee Free Choice Act will create a true power-sharing environment by reason of collective bargaining agreements that amount to employment contracts for most workers in all industries. In my opinion, the EFCA would foster trust, accountability and respect from both sides. In my experience as a mediator when two disputing parties reach amicable resolution or a "win-win" they come away with a greater level of understanding and mutual respect for each sides position.

Just as the paradigm shift in audio media technology finally forced me to put down my cassette player and pick up a cd player, "At Will" employment is another dinosaur whose time has come for a decent burial.

Article Tags: Employee Free Choice Act, Efca, At Will Employment

About the Author:

Yancey Thomas Jr. has functioned as a certified and trained mediator in alternative dispute resolution of employment and general civil issues for over 10 years. As an employee, he has a unique perspective on what it takes to succeed in the workplace. Yancey’s site offers the job seeker and employee more information on education and awareness about basic employee rights.